SENATE BILL No. 449
(Amends Chapter 52)
An Act concerning crimes, criminal procedure
and punishment; relating to lesser included
offenses; the sentence of death; mitigating
circumstances; time limitations on prosecu-
tions for certain crimes; amending K.S.A.
21-3107, 21-4626 and 22-3414 and K.S.A.
1997 Supp. 21-3106, as amended by section 2 of
1998 House Bill No. 2025, and repealing
the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 21-3107 is hereby amended to read as
3107. (1) When the same conduct of a defendant may establish the
mission of more than one crime under the laws of this state, the
may be prosecuted for each of such crimes. Each of such crimes may
alleged as a separate count in a single complaint, information or
(2) Upon prosecution for a crime, the defendant may be
of either the crime charged or
an a lesser
included crime, but not both.
An A lesser included crime may be
any of the following is:
(a) A lesser degree of the same crime;
(b) a crime where all elements of the lesser crime are
identical to some
of the elements of the crime charged;
(c) an attempt to commit the crime charged;
(c) (d) an attempt to commit a
lesser degree of the crime charged;
or crime defined under subsection (2)(a) or
(d) a crime necessarily proved if the crime charged
(3) In cases where the crime charged may include some
it is the duty of the trial court to instruct the jury, not
only as to the crime
charged but as to all lesser crimes of which the accused
might be found
guilty under the information or indictment and upon the
duced. If the defendant objects to the giving of the
instructions, the de-
fendant shall be considered to have waived objection to any
error in the
failure to give them, and the failure shall not be a basis
for reversal of the
case on appeal.
(4) (3) Whenever charges are filed
against a person, accusing the
person of a crime which includes another crime of which the person
been convicted, the conviction of the lesser included crime
shall not bar
prosecution or conviction of the crime charged if the crime charged
not consummated at the time of conviction of the lesser
but the conviction of the lesser included crime shall be
the filing of such charges. Evidence of the person's plea or any
or statement made by the person in connection therewith in any of
proceedings which resulted in the person's conviction of the
cluded crime shall not be admissible at the trial of the crime
the person is convicted of the crime charged, or of
an a lesser included
crime, the person so convicted shall receive credit against any
sentence imposed or fine to be paid for the period of confinement
served or the amount of any fine actually paid under the sentence
posed for the annulled conviction.
Sec. 2. K.S.A. 21-4626 is hereby amended to read as
4626. Mitigating circumstances shall include, but are not limited
(1) The defendant has no significant history of prior criminal
(2) The crime was committed while the defendant was under
influence of extreme mental or emotional disturbances.
(3) The victim was a participant in or consented to the
(4) The defendant was an accomplice in the crime committed
another person, and the defendant's participation was relatively
(5) The defendant acted under extreme distress or under the
stantial domination of another person.
(6) The capacity of the defendant to appreciate the
criminality of the
defendant's conduct or to conform the defendant's conduct to
requirements of law was substantially impaired.
(7) The age of the defendant at the time of the crime.
(8) At the time of the crime, the defendant was suffering from
traumatic stress syndrome caused by violence or abuse by the
(9) A term of imprisonment is sufficient to defend and
people's safety from the defendant.
Sec. 3. K.S.A. 22-3414 is hereby amended to read as
3414. (1) The prosecuting attorney shall state the case and offer
in support of the prosecution. The defendant may make
his an opening
statement prior to the prosecution's offer of evidence, or may make
statement and offer evidence in support
of such statement after
the prosecution rests.
(2) The parties may then respectively offer rebutting
unless the court, for good cause, permits them to offer evidence
their original case.
(3) At the close of the evidence or at such earlier time
trial as the judge reasonably directs, any party may file written
that the court instruct the jury on the law as set forth in the
The judge shall instruct the jury at the close of the evidence
gument and the judge
may, in his
the judge's discretion, after the opening
statements, may instruct the jury on such matters as in
his the judge's
opinion will assist the jury in considering the evidence as it is
In cases where there is some evidence which would reasonably
conviction of some lesser included crime as provided in
subsection (2) of
K.S.A. 21-3107 and amendments thereto, the judge shall instruct
as to the crime charged and any such lesser included
The court shall pass upon the objections to the instructions and
either give each instruction as requested or proposed or refuse to
or give the requested instruction with modification. All
or requested must be filed as a part of the record of the case.
The court reporter shall record all objections to the instructions
or refused by the court, together with modifications made, and the
of the court.
No party may assign as error the giving or failure to give an
including a lesser included crime instruction, unless
he the party objects
thereto before the jury retires to consider its verdict stating
matter to which
he the party objects and
the grounds of his the objection
unless the instruction or the failure to give an instruction
is clearly er-
roneous. Opportunity shall be given to make the objections out of
hearing of the jury.
(4) When the jury has been instructed, unless the case is
to the jury on either side or on both sides without argument, the
cuting attorney may commence and may conclude the argument. If
is more than one defendant, the court shall determine their
in presentation of evidence and argument. In arguing the case,
may be made upon the law of the case as given in the instructions,
as upon the evidence.
Sec. 4. K.S.A. 1997 Supp. 21-3106, as amended by section
2 of 1998
House Bill No. 2025, is hereby amended to read as follows: 21-3106.
A prosecution for murder may be commenced at any time.
(2) Except as provided by subsection (8), a prosecution for
any of the
following crimes must be commenced within five years after its
sion if the victim is less than 16 years of age: (a) Indecent
a child as defined in K.S.A. 21-3503 and amendments thereto; (b)
vated indecent liberties with a child as defined in K.S.A. 21-3504
amendments thereto; (c) enticement of a child as defined in K.S.A.
3509 and amendments thereto; (d) indecent solicitation of a child
fined in K.S.A. 21-3510 and amendments thereto; (e) aggravated
solicitation of a child as defined in K.S.A. 21-3511 and
thereto; (f) sexual exploitation of a child as defined in K.S.A.
amendments thereto; or (g) aggravated incest as defined in K.S.A.
3603 and amendments thereto.
(3) Except as provided in subsection (8), a prosecution for
must be commenced within 10 years after its commission if the
the Kansas public employees retirement system.
(4) Except as provided by subsection (8), a prosecution for
defined in K.S.A. 21-3502 and amendments thereto, or aggravated
inal sodomy, as defined in K.S.A. 21-3506 and amendments thereto,
be commenced within five years after its commission.
(5) Except as provided in subsection (8), a prosecution for
found in the Kansas medicaid fraud control act must be
within five years after its commission.
(6) Except as provided by subsection (8), a prosecution for
of arson, as defined in K.S.A. 21-3718 and amendments thereto, or
gravated arson, as defined in K.S.A. 21-3719 and amendments
must be commenced within five years after its commission.
(7) Except as provided by subsection (8), a prosecution for
not governed by subsections (1), (2), (3), (4), (5) and (6) must be
menced within two years after it is committed.
(7) (8) The period within which a
prosecution must be commenced
shall not include any period in which:
(a) The accused is absent from the state;
(b) the accused is concealed within the state so that process
be served upon the accused;
(c) the fact of the crime is concealed;
(d) a prosecution is pending against the defendant for the
duct, even if the indictment or information which commences the
ecution is quashed or the proceedings thereon are set aside, or are
versed on appeal;
(e) an administrative agency is restrained by court order from
tigating or otherwise proceeding on a matter before it as to any
conduct defined as a violation of any of the provisions of article
chapter 25 and article 2 of chapter 46 of the Kansas Statutes
which may be discovered as a result thereof regardless of who
the order of restraint; or
(f) whether or not the fact of the crime is concealed by the
or conduct of the accused, there is substantially competent
believe two or more of the following factors are present: (i) The
was a child under 15 years of age at the time of the crime; (ii)
was of such age or intelligence that the victim was unable to
that the acts constituted a crime; (iii) the victim was prevented
by a parent
or other legal authority from making known to law enforcement
ities the fact of the crime whether or not the parent or other
thority is the accused; and (iv) there is substantially competent
testimony indicating the victim psychologically repressed such
memory of the fact of the crime, and in the expert's professional
the recall of such memory is accurate and free of undue
and substantial corroborating evidence can be produced in support
allegations contained in the complaint or information but in no
a prosecution be commenced as provided in this section later than
date the victim turns 28 years of age. Corroborating evidence may
clude, but is not limited to, evidence the defendant committed
acts against other persons or evidence of contemporaneous physical
ifestations of the crime. ``Parent or other legal authority'' shall
but not be limited to natural and stepparents, grandparents, aunts,
(8) (9) An offense is committed either
when every element occurs,
or, if a legislative purpose to prohibit a continuing offense
at the time when the course of conduct or the defendant's
therein is terminated. Time starts to run on the day after the
(9) (10) A prosecution is commenced
when a complaint or informa-
tion is filed, or an indictment returned, and a warrant thereon is
to the sheriff or other officer for execution. No such prosecution
deemed to have been commenced if the warrant so issued is not
without unreasonable delay.
Sec. 5. K.S.A. 21-3107, 21-4626 and 22-3414 and K.S.A.
21-3106, as amended by section 2 of 1998 House Bill No. 2025,
Sec. 6. This act shall take effect and be in force from
and after its
publication in the statute book.
Approved May 14, 1998